Surrogacy: From Biblical Sara to Jonathan Kaplan

in 2016 the Constitutional Court decided the extent to which the state may regulate the reproductive opportunities available to those who are unable to have children of their own because they are conception and pregnancy infertile.

The matter raised complex and important issues concerning a law that regulates surrogate motherhood agreements. It touched on sensitive issues that cut across cultures and for both genders: issues of infertility and the inability to conceive a child or to produce a gamete, in order to meet the legal requirement to enter into a surrogate motherhood agreement. The key issue was the power of the state to regulate the assistive reproductive opportunities. The issues involved raised complicated legal and ethical questions that have an impact on many people who are unable to give birth to children of their own.

In doing so one of the justices commented: “The decision to have a child of one’s own has for thousands of years formed a central part of the lives of human beings. It is a blessing that is for the most part taken for granted. The effects of an inability to carry out that decision have, for so many of us, been nothing short of devastating. We are not in any way short of words when it comes to describing the effects of experiencing infertility: grief; sadness; despair; panic; helplessness; and isolation are but a few of the feelings that often ensue. For a large number of people, infertility has been “the most upsetting experience of their lives”. For others, infertility is rated as comparably stressful to the loss of a partner or a child. The likelihood of depression has been shown to double for women who are infertile. Disturbingly, infertility levels are on the rise globally, with one in every ten people facing infertility problems. We are fortunate, however, to live in an era where the effects of infertility can be ameliorated to a large extent through assistive reproductive technologies. The technological advances seen over the last half century have greatly expanded the reproductive avenues available to the infertile.”

The case concerned women who are both permanently and irreversibly infertile in two different senses: first, she is unable to contribute her own gametes for conception; and second, she is unable to carry a pregnancy to term. These are ‘conception infertility’ and ‘pregnancy infertility’ respectively.

Section 294 of the Children’s Act states: “No surrogate motherhood agreement is valid unless the conception of the child contemplated in the agreement is to be effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents or, where the commissioning parent is a single person, the gamete of that person.”
The constitutional challenge to the law was that the requirements violated the rights to equality, human dignity, “reproductive autonomy”, privacy and access to healthcare.

The Government’s answer was that (i) it was not only particular individual women’s rights that were at issue, but also those of the child to be created by the surrogate mother and donor(s). The prospective child had the right to know its genetic origins. (ii) The adoption process in South Africa catered for a woman’s need to have a child. (iii) To allow a single infertile person to create a child with no genetic link to her would result in the creation of a “designer” child. This would not be in the public interest. (iv) the section prevents commercial surrogacy. In dealing with the matter the Court accepted that surrogacy as a concept is not new. So the following was stated: “The Bible, for instance, is replete with examples of arrangements akin to surrogacy. Perhaps most well-known is the story of Abram, Sarai and Hagar: ‘Sarai, Abram’s wife, had not been able to bear children for him. But she had an Egyptian servant named Hagar. So Sarai said to Abram, ‘The Lord has prevented me from having children. Go and sleep with my servant. Perhaps I can have children through her.’ Surrogacy arrangements have also existed for some time in African customary law. In other less enlightened times, African­American slaves often acted as surrogate mothers for their owners. In addition, the ancient Babylonian legal code of Hammurabi acknowledged surrogacy arrangements as part of Babylonian law, with regulations specifying when it would be permitted, as well as the respective rights of both wife and surrogate mother.”

But what is new is the attempt by parliament to regulate surrogacy arrangements. In 2005 a law was enacted by the South African parliament. The law defines a ‘surrogate motherhood agreement’ as “an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.” For any such a surrogacy agreement to be valid it must be confirmed by a High Court, which may not confirm the agreement unless the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible and in general, having regard to the personal circumstances and family situations of all the parties concerned. Above all the interests of the child that is to be born must be considered by the High Court.

Other requirements of interest include that the artificial fertilisation of a surrogate mother may not take place before a surrogate motherhood agreement has been confirmed by a High Court. The agreement lapses after a period of 18 months from the date of its confirmation by a relevant High Court. A child born out of surrogacy is for all purposes the child of the commissioning parents from the moment of her birth and the surrogate mother is obliged to hand over the child to them as soon as is reasonably possible thereafter. A surrogate motherhood agreement that does not comply with the Children’s Act is invalid, and a child born of such an invalid agreement is deemed to be the child of the woman who gave birth to him/her. The receipt of payment in respect of surrogate motherhood agreements is prohibited, but limited exceptions such as the payment of medical expenses are allowed.

The Constitutional Court split 7-4 against the challenge in two judgments. Both judgments consider the issues arising sensitively and with a healthy regard to the interests of society generally, the child to be born and the particular women affected. Perhaps ultimately there is no one right answer to the type of questions that arose in that case.
This discussion about surrogacy was triggered by the superb and moving book by Joanne Jowell on Jonathan Kaplan’s brave journey in the birth of his son, Kaleb. A story to be treasured on so many different levels. Kaleb’s life and story will, I have little doubt, be his right answer.

By Tali Feinberg
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